Verizon is facing a $5 billion lawsuit over its alleged law-breaking. The NYT reports today that this suit may actually involve as much as $50 billion in damage. Previously, a $20 billion suit had been filed regarding the aspects of the NSA program that had become publicly-known in December.
Interestingly enough, when you don’t take into account the downside of engaging in a criminal conspiracy enterprise of questionable legality, it may have ramifications for your shareholders and executives. I wrote about this elsewhere, but it looks like this angle may have increased relevance here at EC.

A former intelligence officer for the National Security Agency said Thursday he plans to tell Senate staffers next week that unlawful activity occurred at the agency under the supervision of Gen. Michael Hayden beyond what has been publicly reported, while hinting that it might have involved the illegal use of space-based satellites and systems to spy on U.S. citizens. …
[Tice] said he plans to tell the committee staffers the NSA conducted illegal and unconstitutional surveillance of U.S. citizens while he was there with the knowledge of Hayden. … “I think the people I talk to next week are going to be shocked when I tell them what I have to tell them. It’s pretty hard to believe,” Tice said. “I hope that they’ll clean up the abuses and have some oversight into these programs, which doesn’t exist right now.”

ThinkProgress.org, quoting from National Journal
Italics (but not bold) supplied by me.
Note to AM: Apropos of your comment many posts back, this story exists due to those in the trenches.

Massachusetts Congressman Ed Markey asksDennis Hastert whether legislation protecting mobile phone users’ privacy has been sent to a “legislative ‘Guantanamo Bay'” in order to modify it so that intelligence gathering activities analogous to those affecting land lines would be unimpeded.

GEN. HAYDEN: You know, we’ve had this question asked several times. Public discussion of how we determine al Qaeda intentions, I just — I can’t see how that can do anything but harm the security of the nation. And I know people say, “Oh, they know they’re being monitored.” Well, you know, they don’t always act like they know they’re being monitored. But if you want to shove it in their face constantly, it’s bound to have an impact. [C]onstant revelations and speculation and connecting the dots in ways that I find unimaginable, and laying that out there for our enemy to see cannot help but diminish our ability to detect and prevent attacks.

It jumped out at me because I discussed precisely his issue about a month ago:

The first is enhancing terrorist awareness of their threat environment. This is important. As time passes, people become complacent. As they become complacent, their investment in security processes drops off.

In “Do Wiretap Revelations Help The Terrorists,” I analyze this line of thought, and believe that there’s much that Hayden couldn’t or didn’t talk about. Perhaps that’s a result of the wiretapping agency not being the agency that does other parts of counter-intelligence. Regardless, if you’re following the story closely, you ought to read his remarks.

One of the noteworthy aspects to the ‘NSA Wiretap’ revelations is how it has galvanized a broad swath of people, far beyond the “usual suspects” to state that the program was a mistake, and we need to function within the rule of law. For example, Suzanne Spaulding, former assistant general counsel at the CIA:

Before I worked on the intelligence committees, I was a lawyer at the CIA. We understood that congressional oversight was key to maintaining the trust of the American public, which is vital for a secret agency operating in a democracy. True oversight helps clarify the authority under which intelligence professionals operate. And when risky operations are revealed, it is important to have members of Congress reassure the public that they have been overseeing the operation. The briefings reportedly provided on the National Security Agency (NSA) surveillance program reflect, instead, a “check the box” mentality — allowing administration officials to claim that they had informed Congress without having really achieved the objectives of oversight. (From “Power Play” in the Washington Post.)

They will be raised, countered, considered and appealed in the context of numerous past, on-going and future terrorism-related cases. The same issues will be aired publicly, in the media and in Congressional hearings. And these issues, and the arguments in these cases, won’t go away anytime soon. In fact, they are likely to cause considerable complications and delays in prosecuting and winning these cases. So, the question must be asked: Was the President’s decision to authorize such NSA wiretaps on his own, arguably on the basis of his own constitutional authority, and without regard to FISA, a mistake? The answer to this question follows, in large part from the answer to another question. Was such unilateral action really necessary?

The question is a fair and natural one to ask, and I’d like to examine it in depth. I think my intuitive answer (“revelations about wiretaps don’t help the terrorists”) is wrong, and that there are surprising effects of revealing investigative measures. Further, those are effects I haven’t seen discussed. Allow me to explain the logic.

First, terrorist organizations need to communicate on a wide variety of levels, from ‘moral support’ to target selection and dates. Second, we can wiretap all their communications, under a variety of legal standards.

So, should we talk about wiretapping of terrorists? The President has asserted that it ‘helps the terrorists’ in some way. Lets ask how that might be. Does talking about wiretapping help the terrorists? Revelations of wiretapping cause both awareness and fear. Either or both could lead to temporarily improved communications security process. What could those be? New crypto? New attention to detail? Better shredding? There are others, which I’ll talk about in a minute. For now, let’s work with the assumption that revelations lead to better adherence to security processes, and the second assumption that better security processes are bad for the listeners. Let’s take those two benefits one at a time.

The first is enhancing terrorist awareness of their threat environment. This is important. As time passes, people become complacent. As they become complacent, their investment in security processes drops off. (There are lots of interesting analogies to this in the business world.) Complacency thus helps the attacker, and hurts the terrorist. So revealing our wiretapping, reducing complacency, hurts the eavesdroppers. Unfortunately for the eavesdroppers, the terrorist exists in a highly adrenaline-filled environment, with regular revelations that his colleagues have been arrested, tortured, or assassinated. Each and every one of these events causes the terrorist to assess his security posture. So, our first assumption (revelations lead to better adherence to security processes), while true, is but one of many causes for that adherence.

Improved communications security is not the only effect of the revelations. What happens if a terrorist is already under surveillance? They may go to ground, or they may reveal alternate communication methods (phone numbers, email addresses, web sites) not yet known. Their security processes presumably include backup methods, and driving those methods into the view of the security services is an important goal.

At this point, we have something of a balance between two hard-to-quantify ideas: better operational security versus the value of exposing alternate channels. There is, however, one final effect of driving terrorists to ground, and it tips the balance.

The final piece is that al Qaeda terrorists gone to ground do not engage in attacks. That gives the investigative services more time to find and arrest them. To me, that tips the balance. Whatever benefits accrue to the terrorists through bless complacency are balanced by exposing additional channels. Delaying murder, and giving us another chance to prevent it tips the balance, even before the benefits of the rule of law are brought in. So! Bring on the revelations!
[Update: Yes, that’s the original poster, with the word “might,” as it appears at archives.gov.]

If you watch “The Simpsons”, you’ve probably seen “Puberty Boy“, the pimply-faced kid who appears in many episodes in a variety of menial jobs.
Well, it looks like he may be working for the NSA:

Q If FISA didn’t work, why didn’t you seek a new statute that allowed something like this legally?
ATTORNEY GENERAL GONZALES: That question was asked earlier. We’ve had discussions with members of Congress, certain members of Congress, about whether or not we could get an amendment to FISA, and we were advised that that was not likely to be — that was not something we could likely get, certainly not without jeopardizing the existence of the program, and therefore, killing the program. And that — and so a decision was made that because we felt that the authorities were there, that we should continue moving forward with this program.
Q And who determined that these targets were al Qaeda? Did you wiretap them?
GENERAL HAYDEN: The judgment is made by the operational work force at the National Security Agency using the information available to them at the time, and the standard that they apply — and it’s a two-person standard that must be signed off by a shift supervisor, and carefully recorded as to what created the operational imperative to cover any target, but particularly with regard to those inside the United States.
Q So a shift supervisor is now making decisions that a FISA judge would normally make? I just want to make sure I understand. Is that what you’re saying?

Source: The White House
Did you catch that? We didn’t try to get the law changed because certain people in Congress told us we’d fail. Oh, and this is no biggie because a shift supervisor plays the role of a federal magistrate. Comedy gold!

I’d like to respond to Dan Solove’s article “How Much Government Secrecy Is Really Necessary” with the perspective of a veteran of the 1990s crypto wars, in which we fought the NSA for the practical right to build and use encryption to protect sensitive data. A central tenat of the government’s position was that there were important things that the public did not know, and could not be told. This was the “if you knew what we knew” argument, and in its most effective form, was delivered in the form of “the brief,” a theatrical presentation involving clearances, special bug-sweeping teams, and finally, details about how various forms of wiretaps had protected truth, justice, and the American way from evildoers. We called those bad guys the four horsemen of the infopocalypse, and they were terrorists, drug dealers, money launderers, and child-pornographers. They were sufficiently a stereotyped part of the debate that sometimes we even laughed at them.

The claim that the debate couldn’t be participated in by the public was a powerful appeal to anyone who trusted that the people in government had any shred of decency. Worse, most of the people on the other side were in fact decent folks, trying to do their banal jobs.

Solove quotes President Bush as saying:

“The existence of this secret program was revealed in media reports after being improperly provided to news organizations. As a result, our enemies have learned information they should not have, and the unauthorized disclosure of this effort damages our national security and puts our citizens at risk.”

That is an utter lie. Before I explain how it is a lie, I’d like to finish with my story from the crypto wars. The wars eventually got hot enough that Congress asked the National Academy of Science to weigh in. A team of the great and good who had served their country was assembled. Protests were voiced over the composition of the team: It was a collection of heads of NSA, CIA, Generals and Admirals, with only a few token liberals. We were all shocked when the report, “Cryptography’s Role In Securing The Information Society” came out. Herb Lin had done an outstanding job of putting together a detailed, fair study of the issues.

I believe it was Ron Rivest who pointed out the most important part of the study, which was that the great and good and Top-secret-cleared committee swept aside the claims that anything classified illustrated any point that had not been made in the open debate. That is, classified details helped tell the stories, but the stories, in broad form, were all public. The American people could have an informed debate about the issues.

Returning to Solove’s comments:

The argument seems to be that we can’t have a national debate about the nature and extent of government surveillance because such information will help the terrorists. But central to any viable democracy is a government that is publicly accountable, and that requires that the people have the information they need to assess their government’s activities.

So, allow me to ask: what is the class of communication which may not be wiretapped? The NSA has broad legal authority under US law to snoop on those outside the United States without warrants. With warrants, it may assist on snooping on those inside the United States. Local police and the FBI both have the ability to obtain wiretap warrants. What’s left? Nothing. What is secret about the previous statements? Certain details of the Foreign Intelligence Surveillance Court. But what of the President’s claim “our enemies have learned information they should not have?” The ability of the United States to tap every communication is not secret. What is being debated is the need for a warrant and judicial oversight of the acts, not the acts themselves. Is the number of wiretaps a secret? Nominally. The numeric scale and capacity of the Echelon system was reported on in Nicky Hager’s “Secret Power.” (1996) The capacity and fail-over capabilities were disclosed to Congress and the press in the aftermath of the NSA year 2000 meltdown.

The second half of the President’s key sentence is: “and the unauthorized disclosure of this effort damages our national security and puts our citizens at risk.” That is also not so. Anyone fighting the United States will study our operational methods, and be aware of the Echelon system. They will be fully aware that we can listen to every phone call they make. There are claims that Bamford’s revelation that we listened to bin Laden talking on his satellite phone caused operational changes in al Qaeda in the mid-1990s. It is possible that stories such as these call attention to the fact that we’re listening, and cause a temporary uptick in the quality of al Qaeda tradecraft and operational security practices.

If that is so, then the correct response would be to follow the law in wiretapping, because the government already has the authority to do it anywhere it has any reasonable reason to want to. If the law had been obeyed, there would be no news. [Update: The law in question is Title 50, Subchapter 1, and provides for criminal penalties. Thanks to Perry Metzger for pointing this out.]

The real core of this story is that the President is fond of his power to act unfettered, to use his vast power as he sees fit. Power really does tend to corrupt. The power to listen to anyone, anywhere is not enough. What the President is arguing for is that his powers to do so should be un-restrained and un-reviewed. That the trifecta of Executive, Legislative and Judicial is quaint, and that we should trust him to prosecute the war on terror without limits. I wish his administration would behave such that we could be comfortable with such trust. It has not, and their response to our questions further erodes such trust.

Months after the Sept. 11 attacks, President Bush secretly authorized the National Security Agency to eavesdrop on Americans and others inside the United States to search for evidence of terrorist activity without the court-approved warrants ordinarily required for domestic spying, according to government officials.